The only Republican tradition that can be categorically confirmed is truthiness.

CrunchyFrog

I’m sure that if a liberal justice had died in February 2008 the GOP would all have agreed that Dubya couldn’t nominate the replacement. Right? Right? I mean, what would Reagan do? Oh, wait.

Denverite

This is a fairly complicated hypothetical. Google “Thurmond rule.”

There were a number of Republican COA nominees who were stonewalled in the last year of the Bush II administration.

tsam

Any rule with that name on it has to be 100% prime bullshit.

Dilan Esper

I will go even farther than Denverite. The Kennedy situation doesn’t count– that was a Democratic VICTORY after defeating Bork, and the vacancy would have had to go two years to get past the election. Plus, Kennedy was replacing Powell, justice with a similar ideology.

But I would expect and demand that any Democratic Congress prevent any Republican president from replacing any liberal Supreme Court justice in a 5 to 4 court where the vacancy occurred during the election year. And I think most of the people complaining about the current situation would too.

Joe_JP

Powell retired in June 1987. He died in 1998.

efgoldman

Powell retired in June 1987. He died in 1998.

Wait! You mean Dilan was wrong on the facts?:::falls on the fainting couch, clutching pearls:::

Joe_JP

Actually, I was responding to someone else who said this:

I’m sure that if a liberal justice had died in February 2008 the GOP would all have agreed that Dubya couldn’t nominate the replacement. Right? Right? I mean, what would Reagan do? Oh, wait.

Powell retired in 1987. Bork was nominated and rejected. Then, another person removed himself from contention. Eventually, yes in 1988 but not quite the same scenario as present here [Powell would have died in 1988 for it to be], Kennedy was confirmed.

This isn’t meant to be a defense of Dilan. I think February is too early to not nominate a replacement. It would have been different later in the year. Now, there is enough time to have a full Court for the 2016 Court in October. A 4-4 Court until mid-2017 is too long.

Warren Terra

It is perfectly normal for visits, preparation, hearings, and voting to take a couple of months. If we didn’t have a few months left before the election maybe it would be inappropriate to ask such of the Senate. But of course we do have months left, even if you put the cutoff a month or two before the election so 1/3 of the Senators can go home and campaign

Crusty

We’re somewhat at risk for the Supreme Court becoming an arm of whichever party controls the Senate.

LosGatosCA

If by the term ‘somewhat’ you mean ‘absolutely since the US Constitution was ratified,’ then yes you are correct.

Richard Gadsden

We have been ever since the first time a lame-duck President appointed a Chief Justice after losing an election and got a lame-duck Senate to ratify that CJ.

Which was, when, 1801?

DocAmazing

The first tech bubble (and the attendant real estate bubble) burst in Bush’s first year and the world economy was Goldman Sacked in his last, so I guess the Republicans are just being consistent.

The original intent was for black presidents to only get 3/5th of a term.

efgoldman

The original intent was for black presidents to only get 3/5th of a term.

And get to fill 3/5 of any vacancy on a court, cabinet post, or ambassadorship.

SoRefined

If the Supreme Court is a lifetime (or until the person appointed chooses to retire) appointment, they’re almost certainly going to be on the court for much longer than a President is in office or even than any party is likely to hold the Presidency (or Senate, for that matter.) So I don’t get how “the President’s term is nearly up so their appointments no longer reflect the will of the people” is even entertained as a serious argument.

Also, given that Republicans have been delay delay delaying judicial nominees for years now, how can we be expected to suddenly think *this* desire to delay is a serious principled argument and not just more of the same?

LosGatosCA

It’s not intended to be a serious argument, it’s intended to persuade a large enough group of the electorate that an obstructionist strategy is reasonable.

It doesn’t have to be rational (see Laugher Curve, etc.) it just has to be persuasive.

Dilan Esper

It’s not that they no longer reflect the will of the people. It’s that it’s possible to have an election where this is the central issue, without leaving a seat vacant for THAT long (one year is really nothing).

So the 2016 election will more clearly reflect the will of the people with respect to this most important Supreme Court seat than the 2012 election did. (And the Democrats, by the way, will win it– the vacancy helps Democrats a ton as Roe is extremely popular and Citizens United is extremely unpopular.)

GeoX

…so the argument is, yeah, we elected Obama, but WE MIGHT CHANGE OUR MIND, so he Shouldn’t do anything for the last one year and three hundred sixty-four days he’s in office, just in case? This somehow seems unconvincing.

LosGatosCA

Stupid is the more appropriate term

BruceJ

This is the Neo-confederate GOP: Obama’s only 3/5ths of a president, after all…

My senior-year college dorm room had a brass plaque over the door (on the inside) memorializing it in the name of Eberhard Faber, IV.

But I never found any secret codicil.

Cheerful

What I love by which I mean what I hate is the ability of the result oriented to simply conjure up rules and precedents out of thin air to suit themselves and then pretend they are channeling some essential wisdom.

When did this magic moratorium on Obama’s nominating power begin? January 1? Are we to believe that if Scalia had slumped into a punch bowl on December 31 the position of the Senate Republicans would be any different?

Presidential EO power ended on 1/20/2009 which was around the same time the constitutional prohibitions on presidential vacations and golf went into effect.

Dilan Esper

When did this magic moratorium on Obama’s nominating power begin? January 1?

Why does anyone think this is an important question?

Look, there’s got to be a “magic moratorium” at some point, right? If the vacancy occurs in January 5, 2017, does Obama get to name the replacement?

So, there’s a point in which he doesn’t, effectively, have this power anymore. When is it? It’s when the Republicans can effectively block it and force the issue for the next election.

I’m learning from this that a lot of liberals really don’t understand that some issues are about power and not principle, and that this is fine so long as the power is written into the Constitution (as the Senate’s power is here). Republicans can block this, therefore they will, and we have two choices: (1) whine about it ineffectively or (2) win the 2016 election and appoint the replacement.

Do you not understand that criticizing the Republicans for their conduct here helps us get (2)?

RevDuRite

Pretty much. I’m not sure what a successful campaign would look like in this cycle if it did not include whining. Surely Dilan is minutes away from bestowing upon us a more enlightened politics, but until then I think calling out Senate Republican caprice has its place.

Don’t get me wrong, I’m not banking on Republican obstructionism to be the most salient issue in the minds of the purple state general election voter, but it would be nice if Dilan left the hippie-punching gloves in the closet for at least a couple of days after Magic Moratorium Mitch reached so deep into his alimentary canal for such a dry lump of shit.

efgoldman

Why does anyone think this is an important question?

Maybe because you are defending the Republiklown postilion?

It’s when the Republicans can effectively block it and force the issue for the next election.

Right. Which, with all the appointments the Republiklowns have refused to confirm, or have let hang for record lengths of time, was January 20, 2009. Way outside historical norms. Why are you making their argument?

jim, some guy in iowa

“why are you making their argument?”

because that’s what he *does*

Malaclypse

Why are you making their argument?

Occam’s Razor says its because he’s on their side.

N__B

N__B says that talking razors are extremely frightening.

Scott Lemieux

1)Uh,everybody else understands that this is about raw power. You were the one bringing in a bunch of arrant nonsense about Obama lacking a mandate and strongly implying that it would be wrong for a Democratic Senate to confirm a replacement.2)As s.p. says,it is blindingly obvious that Democrats can and should do both, and positing it as an either/or choice is very silly.

Joshua

It’s not even the first year. I remember when they were trying to give Reagan credit for the Clinton-era economic boom.

Of course… remember how the GOP was blaming Obama for the job losses and economic crash within a week of his swearing in?

I even vaguely remember some people saying that companies were pre-emptively preparing for the new President by laying people off, so he may have even been blamed for this stuff before he was sworn in.

Dilan Esper

The last year of the presidency has been one of diminished power ever since the founding of the Republic. There is NOTHING new about that.

Joe_JP

Yes, from the first year of the Washington Presidency, the last year of the presidency was one of diminished power. Totally unrelated, John Marshall was confirmed January 31, 1801.

The fact that the last year of an office would be one of “diminished” power doesn’t tell me that a basic function of the President should be blocked for about a year anyway.

I realize 1801 involved a Federalist Congress, so this turns out to be affected by politics. Even there, blocking a justice for a year “since the Founding” would have be a pretty special case. Warren, e.g., actually was in office while his replacement was delayed, and it was partially his own fault for trying to game the system.

Scott Lemieux

There was even a Supreme Court case arising from the many lame-duck appointments Adams made, that Dilan (erroneously) believes to have been enormously important to the establishment of judicial review!

DrDick

For today’s Republicans, nothing any Democratic president does can ever be legitimate and anything any Republican President does, by definition, is always proper.